Demana, Regina v [1965] PGSC 11; [1965-66] PNGLR 144 (29 July 1965)

Papua New Guinea Law Reports - 1965-66

[1965-66] PNGLR 144 - Regina v Demana-Harina

[1965-66] PNGLR 144

PAPUA NEW GUINEA

[SUPREME COURT OF JUSTICE]

REGINA

V.

DEMANA-HARINA

Port Moresby

Mann C.

29 July 1965

CRIMINAL LAW - Murder - Evidence - Admissibility of confession - Applicability of Judges’ Rules.

On a trial on an indictment for wilful murder evidence was led of confessional statements made by the accused. Objection having been taken to the admissibility of the statements;

Held:

N1>(1)      The statements were admissible.

N1>(2)      The Judge’s Rules are intended as a guide to police practice and do not constitute part of the law of evidence.

N1>(3)      The Judge’s Rules approved by the judges of the Queen’s Bench, which came into force in England on the 27th January, 1964, like those which came into force on the 26th October, 1906, are available as a pattern of conduct which has the general approval of the courts in England and in the Territory, and any breach of those Rules, or of the explanations which have been made of the way they should operate, is a matter which should be closely investigated and considered, but not regarded as conclusive on the question of admission or rejection of statements obtained in breach of them.

Trial on Indictment.

In the course of investigations into an alleged murder, the accused was present with the two investigating police constables at the exhumation of the body of the deceased. After seeing the wound on the body, one of the constables asked the accused, without having cautioned him, how he had killed the deceased and whether an axe or a knife had been used. The accused replied that he had killed the deceased with a knife. Subsequently, the police constables received further information and took possession of a gun. One of the police constables then said to the accused: “I have brought this gun because I was told that this trouble happened with this gun”, meaning that the deceased had been shot with the gun.

The accused replied: “I cannot hide it, it is as the woman said, I have nothing to hide”. The accused made a further statement. Objection was taken by counsel for the defence to the admission to all statements made by the accused.

It was not suggested that the police were guilty of misconduct or of exerting pressure on the accused to answer. It was clear on the evidence that questions had been addressed to the accused, while he was in custody, without any caution being administered to him.

Counsel:

Chaney, for the Crown.

Germain, for the accused.

29 July 1965

MANN CJ:  [His Honour after stating the facts continued] I felt some uncertainty whether I should have regard to the new Judges’ Rules recently published and I understand that no judicial view has been expressed so far as to their adoption in this court. I understand there is still some discussion as to their suitability. I do not think that it is necessary on this occasion for me to purport to arrive at any decision because the use which the court has made of the Rules is not absolute, as if they constituted part of the law of evidence. They have been used rather as a means of enabling the court to indicate to the police the kind of standard of practice and behaviour which the judges think appropriate to be observed and which, if observed in truth, are likely to serve the useful purpose for the police of leading to the admission in evidence of more statements obtained by them. It is only a guide and the judge’s discretion extends beyond the contents of the Rules.

I think, therefore, that I should regard each set of Rules as available as a pattern of conduct which has the general approval of the courts in England and in the Territory and that any breach of these Rules, or of the explanations which have been made of the way they should operate, would be a matter to be closely investigated and considered, but not regarded as a matter conclusive on the question of admission or rejection.

I think it would be undesirable to allow too much emphasis on the need to give a warning in some cases. In the past, in many cases, I have known native police constables to be asked about a warning during a conversation with the accused, and the answer has quite often been “Yes, I said to him you must tell the truth or you will be sent to gaol”, an obvious confusion between the more common form of affirmation administered in courts and the warning which should be given to an accused person. This kind of danger is very real, and I cannot think it desirable for a policeman, not having a thorough understanding of the problems involved, to be instructed to go out and give warnings to accused persons. It is better, as usually happens in practice, that an inadequately trained policeman should not interrogate a suspect or accused person. My impression here is that the lack of a warning, which would have been given as a matter of course by an experienced European police officer, was a minor omission not of any consequence in the circumstances, and that the absence of any prolonged interrogation and the apparent freedom of the accused in his response, indicate that the policeman Jakita followed a wise and certainly not an unsympathetic course.

That is my general impression of the situation and I think that the evidence tendered, being otherwise admissible, should not be excluded as a matter of discretion.

Ruled accordingly.

Solicitor for the Crown: S. H. Johnson, Crown Solicitor.

Solicitor for the accused: W. A. Lalor, Public Solicitor.